i Review Petition of Kehar ingh filed before the Hon i ble upreme Court of India t ' iTHMALA I, MP> Matbur Lan*t NEW DSLHI-11000L * a I r T * ft 1 IN THE SUPREME COURT OF INDIA of dealing with the contentions of the law and CRIMINAL APPELLATE JURISDICTION fact raised on behalf of the Petitioner at the REVIEW PETITION (CRIMINAL) hearing of his appeal. The net result of the NO OF 1988 totality of the errors hereinafter pointed out is IN THE MATTER OF: that the Petitioner is being deprived of his life PETITION UNDER ORDER XL OF otherwise than in accordance with the proce­ THE SUPREME COURT RULES, 1966: dure established by law. The Petitioner has AND been dealt with as if Article 21 of the Constitu­ IN THE MATTER OF: tion does not exist in so far as he is concerned. ARTICLE 137 OF THE CONSTITU­ B. That the first contention of the Peti­ TION OF INDIA: tioner was that his trial was unconstitutional AND and void inasmuch as without his consent and IN THE MATTER OF: against his wishes the trial was held inside the JUDGEMENT OF THIS HON'BLE Tihar Jail. COURT DELIVERED BY HON'BLE (a) In dealing with this contention His MR. JUSTICE G. L. OZA, HON'BLE Lordship Mr Justice Jagannath Shetty has" MR. B.C. RAY AND HON'BLE. MR. given the following picture of the place where JUSTICE JAGANNATH SHETTY the trial was held in Tihar Jail:- DATED 3RD AUGUST, 1988, IN CRI­ " First, let us have an idea of the MINAL APPEAL NO. 180 OF 1987 building in which the trial took place. The ENTITLED "KEHAR SINGH - Vs. - Office Block of the Jail Staff was used as the STATE (DELHI ADMINISTRA­ Court House. It is an independent building TION)"; located at some distance from the main Jail AND complex. In between there is a court-yard. This IN THE MATTER OF: court-yard has direct access from outside. A KEHAR SINGH SON OF THE LATE SHRI visitor after entering the court-yard can ATMA SINGH, INDIAN ADULT, CON­ straight go to the Court House. He need not FINED IN THE CENTRAL JAIL, TIHAR, get into the Jail complex. This is evident from NEW DELHI. the sketch of the premises produced before us. ...PETITIONER It appears the person who visits the Court . House does not get any idea of the Jail VERSUS complex in which there are Jail Wards and STATE (DELHI ADMINISTRATION) .Cells. From the sketch, it will be also seen that ...RESPONDENT. the building comprises of a Court-hall, Bar room and chamber for the Judge. The Court- hall can be said to be of ordinary size. It has The Hon'ble the Chief Justice of India and seating capacity for about fifty with some more His Companion Justices of the Hon'ble space for those who could afford to stand. The Supreme Court of India, New Delhi. accused as under-trial prisoners were lodged at The humble Petition of the Petitioner Jail No. 1 inside the Jail complex. It was at a above-named. distance of about 1 km. from the Court House. MOST RESPECTFULLY SHOWETH: For trial purposes, the accused were trans­ i 1. The Petitioner is seeking a review of the ported by van. In the Court hall, they were judgement of this Hon'ble Court dated 3rd provided with bullet proof enclosure. August, 1988, in Criminal Appeal No. 180 of 57. This is a rough picture of the Court 1987 on the following amongst other House where the accused had their trial." GROUNDS: (b) To say the least this is a misreading of the evidence in the case. It cannot be> denied GROUNDS • A. That there is more than one error that access to the place of trial could only be apparent on the face of the record in the matter had by crossing three gates, one at the com- * % 2 / pound of the Jail guarded by sentries and entries about their arrival and depar­ Police, another the main doof of the jail which ture in a register maintained. remains permanently guarded and locked and (iii) Nor do any special doors have to be opened only to permit entry at the discretion of opened for them by anybody. the jail authorities and, third, the door of the (iv) With a slight variation the position in room in which the trial was actually held the Supreme Court is not much diffe­ outside of which were the usual security rent. apparatus and registers to be signed by the (v) Besides it is a serious error of law to visitors. These three doors are shown on the regard a Court of Appeal as a trial sketch attached to the affidavit of Mr R. P. court. | Kochar, Assistant Commissioner of Police, (e) That on this point the error committed who was the Investigating Officer in this case. by His Lordship Mr. Justice G. L. Oza is still It was admitted in the affidavit as. indeed it is more patent. The learned Judge seems to be noticed by His Lordship Mr Justice Jagannath under an erroneous impression that "the Shetty in Paragraph 57 that every visitor had to Office block where there was an approach, seek permission and when the permission was people were permitted to reach and the trial granted it was subject to usual security checks. was held as if it was held in an ordinary Representatives of the press and the. news place....". agencies had asked for permission and the (f) The Third learned Judge His Lordship permission had been granted to them on Mr. Justice B. C. Ray does not independently certain terms. Similarly some ladies who advert to this matter though he fully concurred attended on the 21st September, 1985, had to with the views expressed by both the Judges. obtain permission and they had to make entries (g) That it shocks the sensibility of a in the jail register both at the time of entry and common person in the street to be told that the exist. It was common ground that on applica­ trial in the Patiala House Court Room is not tions being granted gate passes were prepared different from the trial held in Tihar Jail. It is and issued. This happened to some law stu- submitted that the law cannot be that divergent dents as well as who wanted to attend the from the common man's perceptions. Even the proceedings. authorities cited in the judgement itself show (c) The Petitioner submits with respect that it is impossible to create conditions in a jail that requiring an application for permission, which would convert the jail trial into an open the grant of permission and the necessity of a trial. This was pointed out by the Calcutta gate pass were totally inconsistent with the High Court in Prasanta Kumar Mukherjee's right to attend. It is not as if anybody who case (AIR 1952 Calcutta 91). The High Court cared to attend had merely to go through the in that case held the jail trial irregular and set security procedures as were installed for exam­ aside the conviction. ple in the High Court and also in the Supreme (h) That the learned Judges failed to Court. realise that Section 327 of the Code uses the (d) That it is grossly unjust and unrealistic expression "shall be deemed to be an open to suggest that the accused had a public trial or Court." The section thus creates a fiction that what happens in the High Court and the which widely departs from reality. A public Supreme Court is what was happening in the trial in fact is the requirement of Article 21 Tihar Jail. It is difficult to appreciate how this which is not satisfied by a fictional open trial Hon'ble Court had glossed over the following created by the deeming provision in Section vital differences: 327 of the Code. * (i) That persons who go to the High (i) That it makes a serious difference Court do not have to make an ap­ whether a right to open trial is guaranteed by plication to anyone for permission. Article 21 or whether the accused can insist (ii) They do not have to disclose their only on that much openness as the Code of identity nor do they have to make Criminal Procedure chooses to bestow. This 4* 3 • • Hon'ble Court has in dealing with this aspect of or the Original Side Rules of the High Court of the matter committed more than one patent Bombay. The judgement expressly approved error of law. of Scot-v-Scot, 1911-13 All ER 1, the House of (j) In the first place, the learned Judges of Lords judgment in England and the Privy the High Court had come to the conclusion in Council judgment in Mcpherson - v - favour of the Petitioner that the guarantee of Mcpherson, AIR 1936 P.C. 246. an open public trial arises out of Article 21. Both these judgments hold that an open There was no appeal.by the State and this public trial is inherent in the concept of a trial. finding on a point of Constitutional law ren­ It is uncontrovertible that in India liberty dered by a Full Bench could not be upset by cannot be taken away for crime committed the Bench of three Judges which heard this except by a fair trial. That fair trial must be matter. It was pointed out to this Hon'ble open public trial. Court that finding can only be reversed by a (1) That the Hon'ble Bench has failed to Constitution Bench in view of Article 145 (3) deal with the following submission pressed of the Constitution of India.